Highlights: To introduce the brand protection system in China, involving protection on registered trademark, well-known trademark regulated in Trademark Law as well as on noted trademark, famous trademark and top brand provided in local regulations.
According to Chinese media, Lanzhou Administration for Industry & Commerce in Gansu Province of West China launched the first noted trademark selection from August, 2011, and anyone owning registered trademark, whether an individual, corporation or other organizations, may participate in the selection. The report also says the noted trademark system in Lanzhou will be gradually established for more Gansu famous trademarks and China well-known trademarks in the city. Such news shows that more and more attention is being paid to brand construction and intellectual property protection in the relatively less-developed western region of China.
It shall be noticed that noted trademark, however, is not a legal concept in China Trademark Law, with only well-known trademark is legally provided, and its determination rules are almost the same as international regulations. The concept of famous trademark and noted trademark is initially and solely regulated in local regulations, and the corporation whose mark is determined may enjoy preferential policies and the brand values will be increased. This essay refers well-known trademark, noted trademark and registered trademark, famous trademark, top brand product as the brand protection system. The following is the detailed introduction:
I. Registered trademark. The registered trademark protection system is implemented in China, by which the exclusive right of trademark will only be granted to those marks registered (not applied) in the State Trademark Office. For foreign investors, the trademark application could be handled by local qualified agencies and the application period is about 1 to 2 years.
II. Well-known Trademark. Well-known trademark is the highest title in the brand protection system, and it’s also the only mark title recognized by China Trademark Law. The determination of well-known trademark is also the strictest compared with other marks, and the determined well-known trademark is no more than 2000 in China till 2010.
By current laws in China, well-known trademark is strictly determined by “case maintain, passive protection” principle, namely the determination will solely be conducted on trademark owner’s application, and the specific determination method includes administrative determination by the Trademark Office and the Trademark Review and Adjudication Board of State Administration for Industry and Commerce; judicial determination by local intermediate court. For the judicial determination standard was too relaxed, it’s recently issued a new judicial interpretation that the power of intermediate courts on well-known trademark shall be restricted by high courts and the Supreme Court.
Well-known trademark, by Trademark Law, enjoys a more extensive protection scope compared with ordinary marks, like cross-class protection, namely the protected exclusive right of trademark in unregistered classes; furthermore, to register well-known trademark as part of company name is prohibited. As to the infringement, for the well-known trademark, the punishment is more severe. The counterfeiting of well-known brand is kind of crime, and the administrative penalty or civil compensation sentenced by the court is also much higher.
III. Famous trademark and noted trademark. Famous trademark refers to those well known brands in a province(s) and provided by provincial regulations, and noted trademark shall refer to those well known brands in certain a city(s) or county(s), like the abovementioned noted trademark determined by Lanzhou Administration for Industry & Commerce.
There are more than 20,000 local noted trademarks around China till 2010. For the relatively short market economy system development in China of 20 years, most people in China have little sense of trademark and brand, therefore, famous trademark and noted trademark system is introduced to improve such sense. On the other hand, once the mark could be titled “famous” or “noted”, it will be used in corporation’s advertising for the enhancement of brand value. After all, however, such brands bear nothing different from those ordinary trademarks basing on Trademark Law, and it could not be extendedly protected.
IV. Top brand. Top brand selection is hosted by General Administration of Quality Supervision, Inspection and Quarantine, the administrative institution taking in charge of food quality supervision in China. The corporation whose product is titled top brands will also advertise such honor. In 2008 yet, melamine was found in top milk powder brand Sanlu’s baby milk powder, the event not only severely jeopardizes reputation of top brand title, but also leads to the abolishment of top brand system.
As to the brand protection system, trademark registration is the most basic measure, and for the enhanced protection, the application for the title of well-known trademark, famous trademark, noted trademark is a better choice for corporations. In our opinion, it’s against the principle of fairness for those trademark determined corporations to advertise them with the claim of administrative mark approval, though it’s the current situation due to shortly developed market economy in China. We suggest foreign investors consider to participate in the trademark selection in China, for more brand value and the reward from the government once marks are officially determined.
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Copyright reserved by Mr. You Yunting
Editor-in-Chief of Bridge IP Commentary
Partner & Attorney-at-law of Shanghai DeBund Law Offices
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